1. Rules governing admission and exclusion of evidence may be applied either as a matter of
law or in the exercise of a district judge's discretion, depending on the contours of the rule
in question. The decision of whether a witness qualifies as unavailable under K.S.A. 60-459(g)
requires interpretation of the statute's language. Interpretation of a statute raises a
question of law, reviewable de novo on appeal.

2. Consideration of the continuing viability of an earlier holding from this court raises a
question of law reviewable de novo.

3. The list of situations under K.S.A. 60-459(g) in which a witness is unavailable is
exemplary rather than exclusive. A witness who refuses to testify is unavailable under the
plain language of the statute.

Review of the judgment of the Court of Appeals in an unpublished opinion filed April 6,
2007. Appeal
from Reno district court; RICHARD J. ROME, judge. Judgment of the Court of Appeals
affirming in part, vacating
conviction, and remanding with directions is reversed. Judgment of the district court is affirmed.
Opinion filed
October 17, 2008.

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause
and was on the brief for
appellant.

Keith E. Schroeder, district attorney, argued the cause, and Phill
Kline, attorney general, was with him on
the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: The State petitions for our review of the Court of Appeals' reversal of
defendant Anthony Jefferson's conviction of aggravated battery. We examine one issue: Whether
a refusal to testify by State witness Jesse Villa made him unavailable, thus permitting admission of
his preliminary hearing testimony at Jefferson's trial.

Factual and Procedural Background

Jesse Gomez awoke early on February 1, 2004, to the sound of yelling and then a gunshot.
A few moments later, there was a knock at his door. Jesse Villa, Gomez' neighbor, was standing
on Gomez' porch. Villa was bleeding from a wound in his ear and asked Gomez to call 911. Villa
was taken to the Hutchinson Hospital.

Jessica Vigil was Villa's old girlfriend. She had begun dating Jefferson and was with him
on the morning Villa appeared on Gomez' porch. According to Vigil, Jefferson was jealous of her
relationship with Villa, and he decided he was going to "show [Vigil] what would happen to
anybody else that [she] would be with." He dialed Villa's number, gave the phone to Vigil, and
directed her to have Villa meet her in an alley by a certain church near Gomez' house.

Vigil would testify that Jefferson drove a red Ford Fiesta to the alley, hitting Vigil along
the way. Jefferson also pulled out a gun and told Vigil that she was going to have to shoot Villa.
Jefferson then took the gun back, thinking aloud that Vigil probably would shoot him instead. He
then began beating her with the gun. When Jefferson and Vigil arrived at the meeting point, Villa
initially was nowhere to be seen. As Jefferson drove down the alley, accusing Vigil of setting him
up, he and Vigil saw Villa.

Jefferson directed Vigil to get out of the car and call to Villa, which she did. When Villa
approached, according to Vigil, Jefferson brandished the gun and demanded Villa empty his
pockets, asking if Villa knew why he was there. Villa said he did not. Jefferson then asked Vigil if
Villa and she had been together; when Vigil said yes, Jefferson told Villa that was why he was
there. Jefferson then grabbed Villa; they wrestled; Jefferson tried to force Villa into the car; and
Villa ended up with his hands on the back of the Fiesta's hatchback, with Jefferson pointing the
gun at his head.

At this point, Vigil said, she turned her head because she did not want to see Villa die. She
heard a gunshot, and she jumped into the driver's seat of the car. She did not drive away because
she did not know how to drive the Fiesta's stick shift. Jefferson then joined her in the car. He told
her Villa was dead, got angry that she could not drive, and threatened to kill her too. After Vigil's
attempt to operate the car was unsuccessful, leading to a minor accident, Jefferson switched seats
with her and drove away.

After the crime had been reported, officers discovered blood and fresh tire tracks at the
scene. They also found a pocketknife but no gun and no bullet. The knife had no blood on it.

Officers testified that they contacted Vigil for an interview about a week after the incident.
She was very nervous, had a black eye, and had bruises and lumps on her head and face. Officers
did not want to scare her away, and they did not push her to make any statements at that time.
Vigil voluntarily came forward about a week later–nearly 2 weeks after the
crime–and implicated
Jefferson.

Villa testified at Jefferson's preliminary hearing and was subpoenaed to testify at trial. By
that time, he was incarcerated; and, although he appeared, he refused to testify. After voir dire but
before the jury was sworn in, the district judge appointed counsel for Villa. Villa claimed no
privilege, and he maintained that he had not been threatened; he said he was not afraid to testify;
he simply refused to do so. The district judge held him in contempt and sentenced him to 6
months in the Reno County jail.

The State then asserted that it could admit Villa's testimony from the preliminary hearing.
In its view, the defense had an opportunity to cross-examine Villa at the preliminary hearing,
which eliminated any Confrontation Clause problem, and Villa was unavailable. The defense
argued that a refusal to testify does not make a witness unavailable under Kansas hearsay statutes.
It also challenged the sufficiency of the earlier cross-examination opportunity because Jefferson's
attorney at the time of the preliminary hearing had a conflict. The public defender who had
represented Jefferson at the preliminary hearing withdrew between the hearing and trial; although
he had been vaguely aware at the time of the preliminary hearing that another lawyer in his office
was representing Villa in a different case, he later concluded that the representation required
Jefferson to have a different lawyer.

The district judge ruled in favor of the State and admitted Villa's preliminary hearing
testimony at trial. Villa's version of events was that he got a call to meet Vigil in the alley by the
church. She arrived with Jefferson as he was walking away. When she called to him and he
approached, Jefferson was standing outside the car with his back to Villa. Jefferson then turned
around, faced Villa, and asked Villa if he knew him. Villa did not. Jefferson pulled a gun, pointed
it at Villa, and ordered Villa to get his hands out of his pockets. Then, when Villa was positioned
against Jefferson's car, Jefferson asked if Villa had any money or drugs and patted him down.
Jefferson then hit Villa a couple of times with the gun and fired it. Villa heard Jefferson tell Vigil
to get into the car and drive. The two men wrestled, and Jefferson tried to pull Villa into the car.
Villa managed to get away and ran to Gomez' house. Gomez called police.

As for Vigil, in addition to testifying about her version of events, she said at trial that she
had been threatened not to testify against Jefferson and that she was afraid of him. A former
cellmate of Jefferson testified to Jefferson's unsuccessful effort to employ the cellmate to support
an invented alibi.

The defense introduced testimony from the responding paramedic who described Villa's
injuries and his initial refusal of treatment. In addition, a friend of Jefferson testified that he had
driven Jefferson from Newton to Hutchinson on the night of the crime because Jefferson's car, a
blue Corsica, had broken down.

Jefferson testified on his own behalf. His version of events began with Vigil calling him
several times, claiming to have been beaten. According to him, she asked Jefferson what he was
going to do about it and said she would set up a meeting with Villa. After Jefferson's friend drove
him from Newton to Hutchinson, he met Villa in the alley, where Vigil had arranged for the two
men to fight. Jefferson testified that he did not own a gun and that he brought no weapons to the
meeting. Jefferson said that he asked Villa if he knew why he was there, and Villa said yes. The
two then exchanged words and scuffled. Jefferson wrestled Villa to the ground. At some point,
Villa dropped a knife. After Jefferson let Villa up from the ground, Villa pulled a gun from under
his coat. The men wrestled again, and the gun went off. Jefferson maintained that he did not go to
the meeting with the intent to kill Villa. He also maintained that, although he had punched Villa a
few times during the first part of their fight, he never gained possession of the gun. After Jefferson
fled on foot, he said, he later met with Vigil, saw her injuries, and told her what had happened.

On cross-examination, the prosecutor succeeded in pointing out inconsistencies between
Jefferson's account of events at trial and his earlier statements to law enforcement.

During deliberations, the jury sent out the question: "Why did Jess[e] Villa not testify in
person in Case No. 04 CR 203?" In response and without objection, the district judge directed the
jury to refer to instructions on avoidance of inferences drawn from evidentiary rulings, on the
jury's responsibility to determine the weight and credibility of testimony and to use common sense,
and on the standards governing weighing of witness testimony given at another time and place.
The jury ultimately convicted on aggravated battery but acquitted Jefferson of several other
charges–attempted first-degree murder, attempted aggravated robbery, attempted
kidnapping, and
criminal possession of a firearm.

Jefferson appealed on several issues but dropped his challenge to the district judge's
decision on the Confrontation Clause question. Our Court of Appeals reversed on the issue of
Villa's unavailability, ruling that his mere refusal to testify did not make him "unavailable as a
witness" as that phrase is used in K.S.A. 60-460 and defined in K.S.A. 60-459(g), and vacated
Jefferson's conviction. State v. Jefferson, No. 95,049, unpublished opinion filed April
6, 2007, slip
op. at 4-6 (citing State v. Johnson-Howell, 255 Kan. 928, 940, 881 P.3d 1288
[1994]). We
accepted the State's petition for review on this issue.

Standard of Review

The State invokes an abuse of discretion standard of review. Although this court has, on
numerous occasions, stated that "the finding of unavailability of a witness is entirely within the
court's discretion" see, e.g., State v. Ransom, 239 Kan. 594, 598, 722
P.2d 540 (1986), the
situations prompting these statements have tended to involve a district judge's decision on
whether a party's efforts to secure a witness' presence were adequate. See State v.
Stano, 284
Kan. 126, 140-45, 159 P.3d 931 (2007) (district court did not abuse discretion when witness
could not be located for trial); State v. Young, 277 Kan. 588, 598, 87 P.3d 308
(2004) (State
showed reasonable diligence in effort to bring witness to testify live at trial); State v. Watie,
Heard
and Heard, 223 Kan. 337, 340-41, 574 P.2d 1368 (1978) (within court's discretion to
determine
unavailability as long as prosecutor makes good-faith effort to obtain witness' presence at trial);
State v. Mims, 222 Kan. 335, 338, 564 P.2d 531 (1977) (sufficiency of proof of
unavailability of
witness within discretion of district judge; when defendant not reasonably diligent in securing
witness' presence, no abuse of discretion to disallow admission of testimony from earlier trial);
State v. Steward, 219 Kan. 256, 263-65, 547 P.2d 773 (1976) (no abuse of discretion
in allowing
admission of testimony from earlier trial of same action, when witness unavailable because of
advanced pregnancy); State v. Washington, 206 Kan. 336, 338, 479 P.2d 833 (1971)
(no abuse of
discretion to permit admission of preliminary hearing testimony when good-faith, but unsuccessful
effort made to locate witness).

In contrast, the facts before us are not subject to interpretation or weighing that could
affect the reasonableness of a district judge's application of the hearsay statutes. See State v.
Reed,
282 Kan. 272, 280, 144 P.3d 677 (2006) (no abuse of discretion unless no reasonable person
would take the position of the judge). Here, neither Villa's presence nor the State's efforts to
secure it were the problem. The problem was his flat refusal to testify, even in the face of a
contempt citation and its resulting sanction of 6 months in jail.

Furthermore, we have recently clarified that rules governing admission and exclusion of
evidence may be applied either as a matter of law or in the exercise of a district judge's discretion,
depending on the contours of the rule in question. The admission of hearsay evidence such as that
at issue here requires evaluation of statutory applicability, including, first, interpretation of the
statute's language. Interpretation of a statute raises a question of law, reviewable de novo on
appeal. See State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008).

We also observe that the issue, as framed by the parties, requires us to consider the
continuing viability of an earlier holding from this court. This exercise also raises a question of
law reviewable de novo. See Johnson v. Brooks Plumbing, 281 Kan. 1212, Syl.
¶ 2, 135 P.3d
1203 (2006).

Unavailability

There is no dispute that Villa's preliminary hearing testimony was hearsay. K.S.A. 60-460
sets out exceptions to the general rule that hearsay is inadmissible. K.S.A. 60-450(c) creates an
exception for depositions and prior testimony:

"Subject to the same limitations and objections as though the declarant were
testifying in
person, (1) testimony in the form of a deposition taken in compliance with the law of this state
for use as testimony in the trial of the action in which offered or (2) if the judge finds that the
declarant is unavailable as a witness at the hearing, testimony given as a witness in another
action or in a preliminary hearing or former trial in the same action, or in a deposition taken in
compliance with law for use as testimony in the trial of another action, when . . . (B)
the issue is
such that the adverse party on the former occasion had the right and opportunity for
cross-examination with an interest and motive similar to that which the adverse party has in the
action in which the testimony is offered, but the provisions of this subsection (c) shall not apply
in criminal actions if it denies to the accused the right to meet the witness face to face."
(Emphasis added.)

The legislature has defined witness unavailability in K.S.A. 60-459(g), which reads:

"'Unavailable as a witness' includes situations where the witness is (1) exempted on
the
ground of privilege from testifying concerning the matter to which his or her statement is
relevant, or (2) disqualified from testifying to the matter, or (3) unable to be present or to testify
at the hearing because of death or then existing physical or mental illness, or (4) absent beyond
the jurisdiction of the court to compel appearance by its process, or (5) absent from the place of
hearing because the proponent of his or her statement does not know and with diligence has been
unable to ascertain his or her whereabouts.

"But a witness is not unavailable (1) if the judge finds that his or her exemption,
disqualification, inability or absence is due to procurement or wrongdoing of the proponent of his
or her statement for the purpose of preventing the witness from attending or testifying, or to the
culpable neglect of such party, or (2) if unavailability is claimed under clause (4) of the preceding
paragraph and the judge finds that the deposition of the declarant could have been taken by the
exercise of reasonable diligence and without undue hardship, and that the probable importance of
the testimony is such as to justify the expense of taking such deposition."

As our Court of Appeals recognized and Jefferson has emphasized, in
Johnson-Howell,
255 Kan. at 940, this court ruled that a refusal to testify did not render a witness unavailable. The
State now argues that Johnson-Howell misinterpreted the statutory definition of
unavailability and
that we should use this case to correct its legal error.

In Johnson-Howell, defendant Faye Johnson-Howell was tried and convicted
of first-degree murder on an aiding and abetting theory and conspiracy to commit the murder of
her
estranged husband. Her coconspirator, LaJuan Clemons, had waived his Fifth Amendment to the
United States Constitution privilege against self-incrimination by testifying at his own trial for the
same crime; had been convicted of first-degree murder; and was called as a witness for the State
in Johnson-Howell's case. Outside the presence of the jury, Clemons acknowledged he would be
held in contempt if he refused to answer questions. When he refused, the court held him in
contempt. However, in order to preserve defendant's confrontation rights, the court withdrew the
contempt order and decided to allow the State to examine him before the jury. Clemons was
sworn in. When he refused to answer questions, he was declared hostile, and the State asked
leading questions, which Clemons still refused to answer. Because there was no direct
examination, there was no cross-examination. Clemons was held in contempt

Over defendant's hearsay objection, the State was permitted to introduce Clemons'
statements to police following the murder. On appeal, defendant asserted, inter alia, a
violation of
her Sixth Amendment right to confrontation. In addition, she argued that the statements were not
admissible under any of the statutory hearsay exceptions.

In its discussion of the challenge to the admission of Clemons' statements, this court stated
simply that Clemons' statements were not admissible under K.S.A. 60-460(d)(3)–which
permits
introduction of an out-of-court statement by an unavailable witness if the statement was made "by
the declarant at a time when the matter had been recently perceived . . . and while the declarant's
recollection was clear and [the statement] was made in good faith prior to the commencement of
the action and with no incentive to falsify or to distort"–because Clemons' circumstances
did not
match any of the situations of an unavailable witness listed in K.S.A. 60-459(g).
Johnson-Howell,
255 Kan. at 936-37. In this way, although the Johnson-Howell opinion did not state
that the list
of circumstances in K.S.A. 60-459(g) was exclusive, its approach appeared to assume as much.

The Johnson-Howell court also stated that "[a] witness' refusal to testify in a
criminal trial
is not a recognized ground for unavailability of the witness in this state," a sentence picked up and
repeated in its syllabus. 255 Kan. 928, Syl. ¶ 6 (text of opinion, 255 Kan. at 940, citing
State v.
Lomax & Williams, 227 Kan. 651, 660, 608 P.2d 959 [1980]). However, we consider
it
significant that this statement appears only in the section of the opinion discussing
Johnson-Howell's constitutional argument, i.e., that admission of Clemons' statements
to police violated
the Confrontation Clause because Johnson-Howell had been provided no opportunity for
cross-examination. Johnson-Howell, 255 Kan. at 938-44. Likewise, the case
Johnson-Howell cited for
this sentence dealt primarily with a defendant's right to confront witnesses under the federal and
state Constitutions. In that case, Lomax& Williams, 227 Kan. at
658, this court made only a
passing reference to K.S.A. 60-460, and interpretation of the Kansas statutes governing admission
of out-of-court statements by an unavailable witness bore no analytical weight in reaching the
holding on the right of confrontation. 227 Kan. at 655-62.

Ultimately, in Johnson-Howell, in addition to ruling Clemons' statements
inadmissible
under the hearsay statutes, the court ruled that the defendant's lack of opportunity to
cross-examine Clemons violated the right of confrontation. 255 Kan. at 944. Still, the defendant's
convictions were affirmed, because the court viewed the statutory and constitutional errors as
harmless. 255 Kan. at 944-45.

Having recognized a certain internal weakness in the Johnson-Howell
decision, we also
note that it was in conflict with earlier precedent from this court. In State v. Terry,
202 Kan. 599,
451 P.2d 211 (1969), two witnesses who had previously testified against the defendant at his
preliminary hearing refused to testify at trial, despite a grant of immunity. Under those
circumstances, their testimony was treated as "just as 'unavailable' as though [their] physical
presence could not have been procured." 202 Kan. at 603. We concluded that the unavailability
requirement had been met, as it did not depend completely on the physical presence or absence of
a witness but on the inaccessibility of his or her testimony. 202 Kan. at 602-603. The court
specifically declined to hold that K.S.A. 60-459 or K.S.A. 60-460 required a different result,
Terry, 202 Kan. at 603, and this holding of Terry was not overruled by
Johnson-Howell.

In this case, Villa's circumstances, like Clemons' in Johnson-Howell, did not
fit neatly
under any of those listed in K.S.A. 60-459(g). There was no Fifth Amendment or other privilege
that exempted him from testifying; he was not disqualified from testifying in any way; he was not
unable to be present because of death or physical or mental illness; he was not beyond the
jurisdiction of the court; and he was not "absent from the place of hearing" because the State did
not know or could not know, with the exercise of diligence, his whereabouts. See K.S.A.
60-459(g). If we treat the list of unavailable witness situations in K.S.A. 60-459(g) as exclusive,
then
Villa's preliminary hearing testimony should not have been admitted under K.S.A. 60-460(c)(2)B).

The State urges us to treat the K.S.A. 60-459(g) list as exemplary rather than exclusive.
We agree with its position on this point for several reasons.

First, we examine the text of the statute, which introduces the list in this way:
"'Unavailable' as a witness includes situations where a witness is . . . ." (Emphasis
added.) K.S.A.
60-459(g). This plain language means that the classification "unavailable as a witness"
encompasses the situations listed but could also encompass others. The State is correct that this
reading is consistent with our recent decision in State v. Gunby, 282 Kan. 39, 144
P.3d 647
(2006), in which we interpreted the plain language of the list in K.S.A. 60-455 of material facts
subject to proof by introduction of prior convictions or civil wrongs preceded by the word
"including" as being exemplary rather than exclusive. 282 Kan. at 52-53 (material facts in list are
among possibilities, not only possibilities). Jefferson's attempt to
distinguish Gunby is not
persuasive.

A second textual point supports the State as well. The legislature has demonstrated that it
is fully capable of making a statutory list exclusive when it desires to do so by using the
introductory phrase "includes only." (Emphasis added.) See K.S.A. 13-13a04(a);
K.S.A. 20-2916(a); K.S.A. 46-282; K.S.A. 59-2246; K.S.A. 65-1,172(d); K.S.A. 74-4954b(4);
K.S.A. 74-4986g(c); K.S.A. 79-32,175(d).

Having determined that the plain language of K.S.A. 60-459(g) permits situations other
than those listed to equal witness unavailability, we disregard the Johnson-Howell
decision's
apparent assumption to the contrary. It does not control us here because it is analytically flawed;
it fails to acknowledge the existence of contrary precedent; and its syllabus taken from discussion
of a constitutional point has been misread as a statutory interpretation holding.

This brings us to the question of whether Villa's situation or circumstances,
i.e., his refusal
to testify in this case, qualified him as "unavailable" under K.S.A. 60-459(g). The answer is yes.
There was no practical distinction between Villa and any of the out-of-court declarants described
in K.S.A. 60-459(g). His live testimony was just as inaccessible and just as necessary. His
late-blooming reticence, likely generated by events that had transpired between Jefferson's
preliminary
hearing and trial, should not be permitted to undermine the court's truth-finding purpose.

The federal courts recognize the pragmatic aspect of our decision. The federal counterpart
to K.S.A. 60-459(g)–Federal Rule of Evidence 804(a)(2)–states that an
out-of-court declarant
who "persists in refusing to testify concerning the subject matter of the declarant's statement
despite an order of the court to do so" qualifies as unavailable. Also, Professors Charles Alan
Wright and Arthur R. Miller interpret the federal rule's use of the word "include" to introduce an
illustrative list of unavailable witnesses rather than a definitive universe. See 30B Graham,
Federal Practice and Procedure § 7072, p. 723 (4th Interim ed. 2006) ("[A]lthough not
falling
within any of the five illustrative alternatives, a child witness who is too frightened of the
defendant, defense counsel, or the courtroom to be able and willing to testify, or who is found to be incompetent to testify, is similarly
unavailable.").

Conclusion

Because we hold that Villa qualified as an unavailable witness under K.S.A. 60-459(g), his
preliminary hearing testimony was admissible under K.S.A. 60-460(c)(2)(B). The district court
did not err, and we need not consider harmlessness.

The judgment of the Court of Appeals vacating the defendant's conviction is reversed. The
judgment of the district court is affirmed.